"It is ironic that conservatives continue with such attacks even as there is a conservative majority on the Supreme Court and its rulings overall are far more to the liking of conservatives than liberals."

Whatever 'overall' means. What additional powers would liberals want that could go further than taking our homes and slaughtering our young - 53 million since Roe, safe, legal and rare. Kelo and Roe are both still the law of the land. I assume he needs Justice Kennedy to imagine a conservative majority, but Kennedy was the swing vote in Kelo. Someone please tell me what is either conservative or constitutional (or forgivable) about finding a power in the constitution for activist local governments to buddy up with private interests to take private property for preferred private use.

"these candidates do a disservice to the American people when they are clearly wrong about the Constitution"

Perfect straw argument because it was the constitution gave CONGRESS the power to set up jurisdictions like the 9th circuit, the main point of the current controversy. Geography, population and case load have arguably outgrown the 9th Circuit.

"Perhaps these attacks on the federal judiciary are just part of the exceptionally poisonous rhetoric of these divisive times."

No space available in the piece to address Newt's very specific examples in history? Totally missing and that rebuttal from a real academic would actually have been helpful. His silence I assume means Prof. Newt had his history right?

Will the Dean please explain: if rule by independent judiciary was the only intent in the constitution rather than a complex system of checks and balances, why did they write all the other Articles?

Interesting that his own reaction to the attacks on the constitution depend on which Article or amendment is in question:

[abridging the right to bear arms] "is a reasonable way of achieving the government's legitimate goal of decreasing gun violence" [without any amendment to the constitution required] - Erwin Chemerinsky, March 14, 2007 ??

I get that there is serious legal discussion to be had here, and I very much like that Newt had the courage to go into a deep and difficult issue. What I'm not so sure what I like is the possible lack of judgment in doing so. Is this really the sort of issue for a presidential to raise now essentially out of the clear blue as far as the American people are concerned? Does he not appreciate how dangerous this subject is and how easy it is for him to be painted in a terrible light?

Nor do I care AT ALL for him claiming support in part based upon FDR's effort at packing the court with 4 additional justices. (Nor do I care AT ALL for his repeated praise across the years of FDR in general) I still seethe with anger at it and the consequences it had--intimidating the Court as it did from reading the Constitution correctly and putting us on the trajectory that led to the clusterf*ck we are in today.

By CURT LEVEY 'Gingrich would arrest judges," scream the headlines. You'd think he'd proposed some crazy, unconstitutional crackdown on federal judges. Instead, Newt Gingrich's position paper, "Bringing the Courts Back Under the Constitution," has a set of controversial but thoughtful proposals for reining in judicial activism.

These include calling judges before Congress to explain their decisions, impeaching judges or eliminating courts that consistently get the Constitution wrong, and limiting the applicability of Supreme Court decisions that distort the Constitution. They've been dismissed as violations of the Constitution's separation of powers. The criticisms are overblown. All are constitutional if carefully implemented and constrained to the appropriate circumstances.

For example, Congress routinely asks executive branch officials outside the White House to testify about their decisions. It occasionally subpoenas them to compel attendance, and arrest would be a last resort. It's unclear why applying the same rules to the judicial branch threatens the separation of powers, especially if done in the context of considering judicial reform proposals like Mr. Gingrich's. Subpoenaing Justices of the Supreme Court, the only court created by the Constitution, is a possible exception.

Mr. Gingrich discusses the possibility of abolishing individual judgeships or lower federal courts, while acknowledging that this would be "warranted only in the most extreme of circumstances." The Constitution gives Congress the authority to "ordain and establish" lower courts. That includes the power to eliminate courts and judgeships, as Congress has occasionally done. Nonetheless, Mr. Gingrich concedes that "Other constitutional options, including impeachment, are better suited in most circumstances to check and balance the judiciary." Stubborn disregard for the Constitution falls short of the "good behavior" required of judges and may justify impeachment.

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Republican presidential hopeful Newt Gingrich.Another controversial proposal: limiting the applicability of Supreme Court decisions. Mr. Gingrich proposes what Abraham Lincoln outlined in his First Inaugural Address, that "in certain circumstances, the holdings of Supreme Court decisions should be limited to the litigants in a case, and not be held to apply as a general controlling standard." Accordingly, Lincoln refused to treat the high court's Dred Scott decision—now recognized as outrageous judicial activism—as binding on the executive branch. If Lincoln's position seems extreme today, it only reinforces Mr. Gingrich's point that the balance of power has shifted too much toward the judiciary.

Like any plan designed to adjust the constitutional balance of power, Mr. Gingrich's ideas for judicial reform raise a variety of intriguing constitutional questions. Though his freewheeling style adds to the focus on such questions, we should not lose sight of the plan's valuable contribution to the debate on the courts.

Among those contributions is a clear identification of the problem: "The power of the American judiciary has increased exponentially at the expense of elected representatives" such that "the Supreme Court has become a permanent constitutional convention." Mr. Gingrich understands that "judicial supremacy only survives due to the passivity of the executive and legislative branches." He acknowledges the importance of an independent judiciary but points out that "judicial independence does not mean . . . judges can never be held accountable for their judgments . . . however extreme and unfounded."

Instead, Mr. Gingrich argues that the other two branches have the power and the obligation to push back. "The President and each member of Congress takes an oath to defend the Constitution," he notes; "if they believe that the judicial branch is acting contrary to the Constitution, then they have an obligation . . . to check and balance the judicial branch."

There's always the risk of overreach. But unlike the judiciary, democratic constraints provide a check. Even the popular FDR couldn't get a heavily Democratic Congress to approve his court-packing scheme.

Mr. Gingrich doesn't pretend to have all the answers. Instead he offers several possible ways to push back while acknowledging that the best remedy for judicial activism is a president and Senate that will nominate and confirm constitutionalist judges. Beyond that, he describes his specific proposals as "constitutional steps that the legislative and executive branches . . . can take to check and balance the judiciary" (emphasis added), noting that "these powers should be used sparingly." His goals are modest; he hopes to begin "a national conversation" about "formulating executive orders and legislative proposals that will establish a constitutional framework for reining in lawless judges."

While it's easy to criticize anyone who sticks his neck out with specific reform proposals, the alternative is to allow the federal courts to remain unaccountable. Mr. Gingrich's ideas deserve serious consideration, warts and all.

Mr. Levey, an attorney, is executive director of the Committee for Justice

Exhaustive look at the meaning of the second amendment in the context of the militias formed prior to the revolution and the Federalist/Antifederalist debates during the Constitution's ratification. Probably second only to Halbrook's "That Every Man be Armed" in scope:

By RICHARD A. EPSTEIN People who don't live in New York City probably haven't confronted the market-distorting injustices of rent control and similar rent-stabilization laws. But they may recall their outrage in 2008 upon reading that New York Rep. Charles Rangel worked the system by paying a total of $3,894 a month for four rent-stabilized luxury apartments in Harlem, about half the market price.

Remarkably, a serious constitutional challenge to rent-control and stabilization laws may finally be in the works. The challenge arises from James and Jeanne Harmon, who own a town house on West 76th Street in New York City. The upper floors are occupied by tenants who are entrenched under New York's rent-stabilization law, paying rents at only a fraction of the value of their units. Mr. Harmon, a most persistent man whom I have from time to time advised, is attempting to strike down this law.

The Second Circuit Court of Appeals blew off his suit in March, but Mr. Harmon has filed petition for certiorari in the Supreme Court, and, miracles of miracles, the high court has asked New York City and the tenants to respond. His story has been sympathetically featured in the New York Times, the Daily News and the New York Post. Perhaps there is still some life in the challenge to rent controls. There darn well ought to be.

In broad and emphatic language, the Fifth Amendment to the Constitution provides that "no person shall be . . . deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." Rent control collides with the last prohibition, the "takings clause."

All versions of rent-control laws share a single dominant characteristic: They allow a tenant to remain in possession of property after the expiration of a lease at below-market rents. New York even gives the tenant a statutory right to pass on the right to occupy the premises at a controlled rent to family members who have lived with them for two or more years. The tenants in Mr. Harmon's complaint pay rent equal to about 60% of market value.

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CloseCorbis .The Second Circuit recognized that the Harmons would be entitled to just compensation when their property is subject to a "permanent physical occupation." But following the Supreme Court decision in Yee v. City of Escondido (1993), the court insisted that "government regulation of the rental relationship does not constitute a physical taking." That comes as a real surprise to the Harmons when they hear footsteps each night above their bedroom.

Supreme Court decisions dating back to Block v. Hirsh (1921) hold that once a landlord has let a tenant onto the premises for a year, the legislature can extend that lease indefinitely. In so doing, the court undermined the most basic proposition of property law—namely, that property interests are defined by both space and time. Traditional common law rightly treated the tenant who overstayed his lease as a trespasser whom the landlord could evict at will. Rent control upends this relationship.

Supreme Court Justice Antonin Scalia exposed the deeply antidemocratic nature of rent control in Pennell v. City of San Jose (1988). If the government thinks some high social end is served by allowing tenants to sit on someone else's property in perpetuity, then it should use public funds, after democratic deliberation, to buy or lease the premises for market value which it can then lease out to particular tenants. The correct way to handle this issue, he wrote, is by "the distribution to such persons of funds raised from the public at large through taxes," and not to use "the occasion of rent regulation to establish a welfare program privately funded by" landlords.

Mr. Harmon's grievance should resonate on social as well as personal grounds. Rent control and rent stabilization are inimical to the long-term health of New York City. Ordinary tenants paying market rents contribute their fair share to the public treasury. By contrast, rent-controlled tenants on lifetime leases who have a specially privileged legal status are a constant drain on the community, discouraging investment in residential rental real estate by posing a persistent if inchoate threat of subjecting future properties to rent control.

Mr. Harmon is asking the Supreme Court to uphold the Constitution and make right a long-standing wrong. It should take up his invitation and do so.

Mr. Epstein is a professor of law at New York University and a senior fellow at Stanford University's Hoover Institution.

Remember those terrible days of the Imperial Presidency, when George W. Bush made several "recess appointments" to overcome Senate opposition? Well, Czar George II never did attempt what President Obama did yesterday in making recess appointments when Congress isn't even on recess.

Eager to pick a fight with Congress as part of his re-election campaign, Mr. Obama did the Constitutional equivalent of sticking a thumb in its eye and hitting below the belt. He installed Richard Cordray as the first chief of the Consumer Financial Protection Bureau and named three new members to the National Labor Relations Board. He did so even though the Senate was in pro forma session after the new Congress convened this week.

A President has the power to make a recess appointment, and we've supported Mr. Obama's right to do so. The Constitutional catch is that Congress must be in recess.

The last clause of Section 5 of Article 1 of the Constitution says that "Neither House" of Congress can adjourn for more than three days "without the Consent of the other" house. In this case, the House of Representatives had not formally consented to Senate adjournment. It's true the House did this to block the President from making recess appointments, but it is following the Constitution in doing so. Let's hear Mr. Obama's legal justification.

Democrats had used a similar process to try to thwart Mr. Bush's recess appointments late in his term when they controlled both the House and the Senate. Prodded by West Virginia's Robert C. Byrd, who has since died, Majority Leader Harry Reid kept the Senate in pro forma session. Some advisers urged Mr. Bush to ignore the Senate and make recess appointments anyway, but he declined. Now Mr. Reid is supporting Mr. Obama's decision to make an end run around a Senate practice that he pioneered.

Some lawyers we respect argue that a pro forma session isn't a real Congressional session, and that's certainly worth debating. But that isn't the view that Mr. Reid or then-Senator Obama took in 2007-08, and it would certainly be an extension of Presidential power for the chief executive to be able to tell Congress that he can decide when Congress is really sitting and when it isn't. In any event, that still wouldn't explain the violation of the language in Section 5 above.

These appointments are brazen enough that they have the smell of a deliberate, and politically motivated, provocation. Recall the stories over the New Year's weekend, clearly planted by the White House, that Mr. Obama planned to make a campaign against Congress the core of his re-election drive. One way to do that is to run roughshod over the Senate's advice and consent power and dare the Members to stop him.

Mr. Cordray's appointment also plays into Mr. Obama's plan to run against bankers and other plutocrats. The President justified his appointment yesterday by saying that Senate Republicans had blocked Mr. Cordray's nomination "because they don't agree with the law setting up the consumer watchdog."

Yet he knows that Senate Republicans haven't called for the dissolution of the consumer financial bureau, or personally attacked Mr. Cordray, as Democrats like to claim. Republicans have said they'd be happy to confirm him if Mr. Obama agrees to reforms of the bureau that would make it more accountable to elected officials and subject to Congressional appropriations. As it stands, the bureau is part of the Federal Reserve but Mr. Cordray sets his own budget and doesn't report to the Fed Chairman. His rule-makings also don't need to worry about such inconvenient details as bank safety and soundness.

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President Obama with Richard Cordray in Shaker Heights, Ohio, on Wednesday..The bureau has been up and running since July and is already pushing the boundaries of its examination powers. With Mr. Cordray on board, he says the bureau can now begin to issue rules, including oversight of nonbank institutions and the ability to define what constitutes an "abusive" act or practice, an invention of the Dodd-Frank financial reform that will surely lead to mischief.

As Ohio Attorney General, Mr. Cordray was tight with the tort bar and launched a barrage of national lawsuits worthy of Eliot Spitzer. His new job might be a nice populist springboard for running for Ohio Governor, should he choose to do so. Look for Mr. Cordray to announce new and controversial rules or enforcement actions, oh, say, around Labor Day.

As for Mr. Obama's three NLRB appointees, he only notified Congress of his intent to nominate them on December 15. The Senate hasn't had time to hold a single confirmation hearing. The nominees, two Democrats and one Republican, will give the labor board a quorum that it wouldn't have had with the December 31 expiration of the term of previous recess-appointee Craig Becker.

Under this Administration, the supposedly nonpartisan NLRB has become a partisan arm of Big Labor, and that will probably continue this election year. Appointee Sharon Block is the Labor Department's Congressional liaison and former aide to Ted Kennedy. Richard Griffin is general counsel for the International Union of Operating Engineers.

Remember a year ago when Mr. Obama was talking about "regulatory relief" and moving toward the political center? He even sent us an op-ed.

Congress can't do much immediately to stop these appointments, but it ought to think creatively about how to fight back using its other powers—especially the power of the purse. However, private parties will have standing to sue if they are affected by one of Mr. Cordray's rule-makings, and that's when the courts may get a say on Mr. Obama's contempt for Congress.

President Obama is confident he had the authority to recess-appoint Richard Cordray to the Consumer Financial Protection Bureau (CFPB), White House press secretary Jay Carney said Thursday.

Republican leaders blasted Cordray’s appointment as an “unprecedented” and potentially illegal power grab by the president, but Carney said the White House is “very confident” that the law is on their side.

At the same time, Carney added, "I don't want to anticipate legal challenges we haven't seen yet."

Business groups say legal challenges to the recess appointment could come swiftly, and an official with the U.S. Chamber of Commerce told The Hill a court fight over the appointment is a near certainty.

Obama broke with years of legal precedent by making the recess appointment while the Senate was holding brief pro forma sessions. Senate Democrats used the same tactic to block recess appointments from President George W. Bush.

The president also recess-appointed three members of the National Labor Relations Board (NLRB), a move that gives the agency a working quorum for 2012.

Carney fired back on an attack made Thursday by Republican front-runner Mitt Romney, who accused Obama of packing the NLRB with "union stooges."

"There were three nominees — one of them was a Republican," the spokesman said. "I find it a little rich that on this and on the appointment of Richard Cordray ... that the former governor of Massachusetts decided to take a position in both cases against the security and protection of middle-class Americans."

Carney insisted Obama was not trying to be "deliberately provocative" with the recess appointments.

"He has worked cooperatively with Congress" since he took office, Carney said.

Obama felt an “absolute urgency” to install Cordray at the bureau, Carney said, adding that no one expects Washington to be a campfire where everyone sings “Kumbaya.”

Senate Republicans had warned Obama not to recess-appoint Cordray to the CFPB and had vowed to block his nomination until structural changes were made to the agency to make it more accountable.

Carney said Cordray’s nomination and the drive to change the bureau are separate issues.

If Republicans want to change the law on the CFPB, "they can do it legislatively," he said.

In addition to the C'l issues presented, I would make note of the politics. Baraq is playing this as the Reps being for financial interests, and against the little guy. Not only is this attack and obfuscation facilitated by the failure to get in front of the anti-bank bail out impulse that the OWS folks played to so well, but the Reps have utterly failed to make their case to the people about why they are so determined against the Consumer Protection Agency-- it being beyond Congressional oversight or budegetary control. ==========================

By DAVID B. RIVKIN JR. And LEE A. CASEY President Obama's appointments of Richard Cordray as head of the new Consumer Financial Protection Bureau, and of three new members of the National Labor Relations Board, are all unconstitutional.

Each of these jobs requires Senate confirmation. The president's ability to fill them without that confirmation, using his constitutional power to "fill up vacancies that may happen during the recess of the Senate," depends upon there actually being a recess. Both the House of Representatives and the Senate are open for business. The new appointees can pocket their government paychecks, but all their official acts will be void as a matter of law and will likely be struck down by the courts in legal challenges that are certain to come.

The Constitution's Framers assumed that Congress would convene only part of each year, and that there would be long stretches during which the Senate would be unavailable to play its critical "advice and consent" role in the appointment of federal officials. Their solution was to allow the president to make temporary, "recess" appointments permitting the individuals chosen to serve for up to two years, until the end of Congress's next session. This, it was thought, would give the Senate time to act upon actual nominees for the offices once it reconvened without leaving these—perhaps critical—posts vacant for many months.

Presidents have used this authority with alacrity, especially in recent times, as a means of putting a favored nominee on the job even in the face of significant Senate opposition. Historically, the president's lawyers have advised that this is a constitutionally permissible exercise of his recess-appointment power, so long as the Senate is actually in recess.

The Constitution does not define a "recess," but in view of the original purpose of the recess-appointment power, a senatorial absence of more than a few days has been considered a necessary prerequisite. This is particularly the case because the Constitution also provides (in Article 1, section 5, clause 4) that neither house of Congress can "adjourn for more than three days" without the other's consent—thus ensuring that the flow of legislative work cannot be unilaterally interrupted. The Senate can hardly be in recess in the absence of such an agreement—and there is none now.

Martin Kozlowski .In more recent years, and especially during President George W. Bush's administration, the Senate has attempted to limit recess appointments even further by remaining "in session" on a pro forma basis. Whether such sessions are inherently sufficient to defeat a presidential recess appointment is debatable. However, in circumstances where the Senate is not merely in session as a theoretical matter, but is actually conducting business—albeit on the basis of agreements that measures can and will be adopted by "unanimous consent" without an actual vote—there can be no question that it is not in recess.

That is the situation today. The traditional test, as articulated in a 1989 published opinion by the Justice Department's own constitutional experts in the Office of Legal Counsel, is "whether the adjournment of the Senate is of such duration that the Senate could 'not receive communications from the President or participate as a body in making appointments.'" Today's Senate, which is controlled by the president's own party, is fully capable of performing both functions in accordance with its rules. Indeed, the Senate is so much in session that on Dec. 23—three days after beginning its pro forma session—it passed President Obama's current highest legislative priority: a two-month payroll tax holiday, which the president promptly signed.

Mr. Obama is claiming an open-ended authority to determine that the Senate is in recess, despite that body's own judgment and the factual realities. That is an astonishing and, so far as we can tell, unprecedented power grab.

It is not up to the president to decide whether the Senate is organized properly or working hard enough. However much the supposedly power-hungry President George W. Bush may have resented the Senate's practice of staying "in session" to defeat his recess-appointment power, he nevertheless respected the Senate's judgment on the point.

The president has done his new appointees and the public no favors. Both the National Labor Relations Board (NLRB) and the Consumer Financial Protection Bureau are regulatory agencies with profound real-world impact. Those individuals and businesses subject to regulations and rulings adopted during the tenure of Mr. Obama's recess appointees can challenge the legality of those measures in the courts, and they will very likely succeed.

Only two years ago in New Process Steel v. NLRB, the Supreme Court undercut hundreds of NLRB decisions by ruling that the board had not lawfully organized itself after the terms of two recess appointee members expired, leaving it without a quorum. Similar issues will arise when both the new financial bureau and the NLRB begin to act with members whose appointments are constitutionally insupportable.

The fact that the president has apparently triggered the constitutional crisis without really expecting to produce any lasting policy impact, and for no better reason than to bolster his claim of running against a "do-nothing" Congress (the key part of his re-election campaign), makes his behavior all the more reprehensible.

Messrs. Rivkin and Casey are Washington, D.C., lawyers who served in the Justice Department during the Reagan and George H.W. Bush administrations. Mr. Rivkin is also a senior adviser to the Foundation for Defense of Democracies.

Something that has been left unsaid in the discussion about the recess appointments is the likely role of the Office of Legal Counsel. The OLC has a long history of interpreting, and for the purpose of presidential defining, the recess appointment. There was at least one moment (I think in the Reagan adminstration, but I may be mistaken) where the OLC interpreted recess was interpreted by OLC as less than a day. It is likely, therefore, that OLC has played a role in this decision and in giving President Obama its understanding of the definition of a "recess"... and there might be more conservative OLC opinions which played a role in this action.

By MICHAEL MCCONNELL One reason so many Americans entrusted Barack Obama with the presidency was his pledge to correct the prior administration's tendency to push unilateral executive power beyond constitutional and customary limits.

Yet last week's recess appointments of Richard Cordray as the first chief of the Consumer Financial Protection Bureau and three new members to the President's National Labor Relations Board—taken together with other aggressive and probably unconstitutional executive actions—suggest that this president lacks a proper respect for constitutional checks and balances.

The Obama administration has offered no considered legal defense for the recess appointments. It even appears that it got no opinion from the Office of Legal Counsel in advance of the action—a sure sign the administration understood it was on shaky legal ground.

It is hard to imagine a plausible constitutional basis for the appointments. The president has power to make recess appointments only when the Senate is in recess. Several years ago—under the leadership of Harry Reid and with the vote of then-Sen. Obama—the Senate adopted a practice of holding pro forma sessions every three days during its holidays with the expressed purpose of preventing President George W. Bush from making recess appointments during intrasession adjournments. This administration must think the rules made to hamstring President Bush do not apply to President Obama. But an essential bedrock of any functioning democratic republic is that the same rules apply regardless of who holds office.

It does not matter, constitutionally, that congressional Republicans have abused their authority by refusing to confirm qualified nominees—just as congressional Democrats did in the previous administration. Governance in a divided system is by nature frustrating. But the president cannot use unconstitutional means to combat political shenanigans. If the filibuster is a problem, the Senate majority has power to eliminate or weaken it, by an amendment to Senate Rule 22. They just need to be aware that the same rules will apply to them if and when they return to minority status and wish to use the filibuster to obstruct Republican appointments and policies.

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President Obama alongside Richard Cordray, head of the Consumer Financial Protection Bureau, in Shaker Heights, Ohio, Jan. 4..Moreover, in this case, two of the recess appointees to the National Labor Relations Board had just been nominated and sent to the Senate on Dec. 15—two days before the holiday. So it is simply not true that they were victims of Republican obstructionism, even if that mattered.

Some of the administration's supporters have tried to argue that the pro forma sessions are a sham and thus that the Senate has been in recess since Dec. 17. Aside from the fact that these sessions are not, in fact, a sham—the Senate enacted the payroll tax holiday extension, President Obama's leading legislative priority, on Dec. 23 during one of those pro forma sessions—the plain language of the Constitution precludes any such conclusion.

Article I, Section 5, Clause 4 requires the concurrence of the other house to any adjournment of more than three days. The Senate did not request, and the House did not agree to, any such adjournment. This means that the Senate was not in adjournment according to the Constitution (let alone in "recess," which requires a longer break).

Others have argued that the president can make recess appointments during any adjournment, however brief, including the three days between pro forma sessions. That cannot be right, because it would allow the president free rein to avoid senatorial advice and consent, which is a major structural feature of the Constitution. He could, for example, make an appointment overnight, or during a lunch break. In a brief in the Supreme Court in 2004, Harvard law professor Laurence Tribe dismissed as "absurd" any suggestion that a period of "a fortnight, or a weekend, or overnight" is a "recess" for purposes of the Recess Appointments Clause.

This is not the first time this administration has asserted unilateral executive power beyond past presidential practice and the seeming letter of the Constitution. Its slender justification for going to war in Libya without a congressional declaration persuaded almost no one, and its evasion of the reporting requirements of the War Powers Resolution—over the legal objections of Justice Department lawyers—was even more brazen. According to the administration, not only was our involvement in Libya not a "war" for constitutional purposes; it did not even amount to "hostilities" that trigger a reporting requirement and a 60-day deadline for congressional authorization.

Indeed, the Obama administration has admitted to a strategy of governing by executive order when it cannot prevail through proper legislative channels. Rather than work with Congress to get reasonable changes to President Bush's No Child Left Behind education law, it has used an aggressive interpretation of its waiver authority to substitute the president's favored policies for the law passed by Congress. When the president's preferred cap-and-trade legislation to limit carbon emissions failed in Congress, the Environmental Protection Agency announced it would proceed by regulation instead. And when Congress refused to enact "card check" legislation doing away with secret ballots in union elections, the president's National Labor Relations Board announced plans to impose the change by administrative fiat—one of the reasons Senate Republicans have tried to block appointments.

The English philosopher John Locke, who so influenced our Founding Fathers, wrote that a "good prince" is more dangerous than a bad one because the people are less vigilant to protect against the aggrandizement of power when they perceive the ruler as beneficent.

I fear many Democrats are falling into this trap. They like President Obama and his policies, and they are willing to look the other way when it comes to constitutional niceties. The problem is that checks and balances are important, precedents created by one administration will be exploited by the next, and not all princes are good.

Mr. McConnell, a former federal judge, is a professor of law and director of the Constitutional Law Center at Stanford Law School, and a senior fellow at the Hoover Institution.

If this "The Obama administration has offered no considered legal defense for the recess appointments. It even appears that it got no opinion from the Office of Legal Counsel in advance of the action—a sure sign the administration understood it was on shaky legal ground." is true, than Obama totally fu$#ed up. See my post from above.

Incidentally, if his credentials didn't indicate this, McConnell is real, real smart and an influetial scholars and jurist.

"Mr. McConnell, a former federal judge, is a professor of law and director of the Constitutional Law Center at Stanford Law School, and a senior fellow at the Hoover Institution."

"Incidentally, if his credentials didn't indicate this, McConnell is real, real smart and an influetial scholars and jurist."

Yup.

"It even appears that it got no opinion from the Office of Legal Counsel in advance of the action—a sure sign the administration understood it was on shaky legal ground." is true, than Obama totally fu$#ed up."

Yup.

Although an alternate analysis also suggests itself here-- that he doesn't give a fornication, just like he didn't when he ignored the bankdruptcy laws and fuct the secured creditors of GM.

An interesting look at what the future of gun rights might look like in the wake of Heller et al.

What Will the Right to Keep and Bear Arms Mean in the Coming Years?

Part One in a Two-Part Series on the Ways in Which Lower Courts and the Supreme Court Will Need to Flesh Out Second Amendment Doctrine

One of the big constitutional issues that will be discussed and litigated over the next decade, and one that may figure prominently in the election this fall, is precisely what leeway Congress, states, and localities have to regulate firearms ownership and use consistent with the Supreme Court’s recent declaration that the Second Amendment includes an individual constitutional right, at least under some circumstances, to keep and bear arms.

In a series of columns beginning with this one, we explore and analyze some of the major Second Amendment issues confronting the lower courts—and soon the Supreme Court. In this installment, Part One of the series, we provide the background necessary to appreciate some of the cutting-edge questions that we will then take up in more detail in Part Two, here on Justia’s Verdict, in a few weeks.

The Heller Bombshell

In 2008, in District of Columbia v. Heller, the United States Supreme Court determined, for the first time in over two centuries, that the Second Amendment protects an individual and fundamental right to keep and bear arms. In doing so, the Court struck down local gun control regulations in DC that prohibited the possession of a handgun in one’s home, and required any firearm in one’s home to be “unloaded and disassembled or bound by a trigger lock.” Two years later, in McDonald v. City of Chicago, the Court concluded (as everyone expected it would, after the landmark Heller ruling) that the Second Amendment limited not only the federal government (as in DC), but also the states and localities, by way of the Fourteenth Amendment’s incorporation doctrine.

Identifying the existence of a right is one thing. Developing doctrine to guide the resolution of cases involving alleged abridgements of the right is quite another. In its two recent cases, the Court—by its own admission—has done little to assist the lower federal courts and state courts in deciding Second Amendment disputes.

Not surprisingly, there has been a flood of such disputes. Indeed, given the extraordinary ambiguity of the Heller opinion, it is difficult to understand why anyone convicted of a gun offense would not raise a Second Amendment defense to the charges against him. Courts have confronted challenges to laws that: prohibit the possession of firearms with obliterated serial numbers; ban persons convicted of misdemeanor domestic violence from possessing firearms; deny firearms to felons; prohibit the carrying of loaded handguns within a national park; prohibit the carrying of a loaded firearm outside one’s home or place of business; require the registration of firearms and require firearms training as a condition of registration; and prohibit gun shows in which firearms are sold on county property. And these are just a few of the claims raised to date.

To put things mildly, constructing a legal framework for evaluating these and other claims has been a challenge to lower courts. Certainly, the reasoning and analysis of judicial opinions in this area have been varied and conflicting. Indeed, we think it is fair to say that at the current time, no one really knows how Second Amendment cases should, or will, be adjudicated. Doctrine in this area is a work in progress. Numerous issues remain unclear and unresolved.

The Guidance Heller Does, and Does Not, Provide

The Court in Heller was clear about a few things. It left no doubt that the Second Amendment right to bear arms was grounded in the self-defense of one’s person and one’s home. And it made clear that the language in the first clause of the Second Amendment about “a well regulated Militia being necessary being necessary to the security of a free State” has no bearing on the meaning of this constitutional provision. Thus, according to the Court, the utility of a weapon for militia or military purposes has no relevance to whether possession of the weapon is protected by the Second Amendment. Handguns are covered because of their utility for self-defense purposes. Machine guns are not covered, notwithstanding their greater utility for state security purposes.

The Court was also adamant about the standard of review that would not apply to gun control regulations. Rational basis review—in which a law needs to be only minimally rational to be upheld—was inappropriate, because it is too deferential to protect a “fundamental” right.

Further, in responding to Justice Breyer’s dissenting opinion, the Court emphatically rejected the argument that restrictions on the right to keep and bear arms should be evaluated under a “freestanding ‘interest-balancing’ approach.” The “core protection” of other fundamental rights—such as the right to free speech—was not subject to such a case-by-case analysis. Indeed, the recognition of an interest as a fundamental right reflected the exact opposite understanding. In adopting the Second Amendment, the People had already engaged in a basic balancing of interests and concluded that the right to firearms deserved special protection from government interference. New attempts to rebalance the right’s value against competing state interests were foreclosed by this earlier constitutional determination.

While the Court was somewhat clear in describing the wrong way to evaluate Second Amendment claims, it was much less helpful in discussing how Second Amendment cases should be correctly adjudicated. The Court explained that it did not need to discuss the various standards of review that might be applicable because the D.C. regulations before it were so obviously unconstitutional and inconsistent with Second Amendment guarantees that they would be struck down under “any of the standards of scrutiny” previously applied in fundamental rights cases.

Perhaps the Court would have been better off stopping there and giving lower courts the first crack at the daunting task of developing Second Amendment doctrine from scratch. But it did not. Instead, it went on to make a number of observations about how the doctrine should unfold, and in doing so, it created considerable confusion—making an already difficult job for lower courts almost impossible.

The Court started sensibly enough by acknowledging that “[l]ike most rights, the right secured by the Second Amendment is not unlimited.” But then it proceeded to identify some, but not all, of those limits by way of a flimsy—indeed conclusory—summary of historically accepted restrictions on firearms: “[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places, such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of firearms.”

Further, the Court indicated that this list of limits was neither complete nor absolute: “We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.” Indeed, in an isolated comment, later in its opinion, the Court casually added another limitation to its list, saying that its holding should not be understood to suggest that “laws regulating the storage of firearms to prevent accidents” were unconstitutional.

While some of the limits the Court imposed related to the identity of the person being regulated, or the place being regulated, or the particular activity being engaged in, other limits that the Court recognized on the right to keep and bear arms pertained to the kind of weapons encompassed by the Second Amendment. This analysis too was predicated on an abbreviated historical discussion. The Court confirmed that the weapons covered by the right were those “in common use at the time” of the Second Amendment. Thus, according to the Court, the Second Amendment “does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.”

In addition to identifying limitations on the right to bear arms, the Court also recognized particular circumstances and gun-user-motives where the right was at its zenith. The need to defend one’s person, family and property in one’s home was “most acute,” the Justices asserted, without providing further analysis. The importance of the right to defend one’s home was repeated several times, perhaps most notably when the Court insisted that “whatever else it leaves to future evaluation, [the Second Amendment] surely elevates above all other interests the right of law-abiding responsible citizens to use arms in defense of hearth and home.”

One Reason Heller Provides a Shaky Foundation for Doctrine: The Lack of a Discussion of the Nature of the Permissible Limitations

It would be difficult to overstate the confusion sown by Heller. To reiterate, the Court provides no guidance whatsoever as to the standard of review to be applied in Second Amendment cases. And, if that were not bad enough, the Court went on to provide a list of historically accepted restrictions on the right to keep and bear arms that the Justices explicitly admitted was incomplete.

The Court’s reliance on history and tradition in this regard would not be so problematic if it had provided adequate background on the relevant history to enable lower courts to extrapolate from the list the Court provided. But here again, in response to dissenting justices’ demands for more information, the Court refused to provide additional background for its historical conclusions. Without a more detailed historical account, however, how can a lower court know, until the Supreme Court makes more transparent its approach to history in this context, when a specific gun control measure is sufficiently longstanding to limit the scope of the right?

Heller raises other conceptual and doctrinal dilemmas too. Most importantly, in discussing the limits to the Second Amendment, it fails to explain the essential nature of the limits it is describing.

Typically, rights might be limited in two ways. First, rights are limited in the range of activity—the scope—they encompass. Not everything that communicates a message, for example, such as an act of terrorism or the display of obscene movies, constitutes speech that is protected under the free speech clause of the First Amendment. Second, rights are also limited in that that they may be outweighed by countervailing governmental interests. The use of loudspeaker for a political message is clearly protected speech, but it may be prohibited in a residential neighborhood late in the evening to further the state’s interest in providing people quiet and repose in their homes at night.

The Heller Court never explicitly identifies the kind of limitations it has in mind. One might reasonably read its emphasis on history, and its condemnation of interest balancing, as suggesting that the limitations it describes (and other unidentified traditional limitations) go to the scope of the Second Amendment right. That might support the development of doctrine that narrowly defines the scope of the right, but protects very fiercely—perhaps by the use of a strict kind of judicial scrutiny—what does fall within its coverage.

If that is what the Heller majority opinion intends, however, why does it describe these longstanding regulatory measures as “presumptively lawful” rather than clearly constitutional? Presumptions are subject to rebuttal. The parameters of a right are not.

Alternatively, the scope of the Second Amendment might apply far more broadly. The limitations recognized in Heller might reflect abridgements of the right that we tolerate because they are justified by overwhelmingly important state interests. Thus, felons may have a right to keep and bear arms for self-defense purposes, but their right to do so is outweighed by the state’s interest in preventing individuals who are prone to acting unlawfully from having access to firearms.

The problem with this reading is that many of the limitations Heller identifies are not, in fact, narrowly tailored to serve important state interests. A felon who was convicted of a non-violent crime 15 years ago may have had an unblemished record for the last 14 years and may have a home and family today. If the state continues to deny him, and all others in the class of felons, the right to keep and bear a firearm for home defense purposes, then the state’s decision could only be upheld under fairly deferential review.

One could also posit a doctrinal framework in which questions such as these are evaluated under some form of intermediate-level scrutiny requiring courts to evaluate and balance a felon’s likelihood of using a firearm unlawfully (and society’s interest in restricting his access to firearms) against the individual’s interest in possessing a firearm for defense of his or her home and family. That kind of a nuanced analysis, however, would seem to fly in the face of Heller’s emphatic rejection of ad hoc case by case interest balancing.

In some places, the Court’s opinion in Heller seems almost to imply that calling a right “fundamental” will resolve all difficult disputes about how to protect it. But surely the Court is aware that the term “fundamental right” is no doctrinal talisman. There is no uniform approach to adjudicating cases that implicate laws that are alleged to infringe a fundamental right. Free exercise rights, free speech rights, the right to have an abortion, procedural due process rights, and the right to be free from unreasonable searches and seizures are all fundamental, yet they are protected under very different doctrinal frameworks.

Another Limitation in Heller: The Imprecision About What Laws Burden Gun Ownership or Use Enough to Even Trigger the Second Amendment

There is yet another important omission that magnifies the problems courts confront today: Heller says almost nothing about how courts should determine what constitutes an infringement of the right to keep and bear arms in the first place. Not all government activity that affects a right requires the state to justify its conduct. For example, a law requiring all healthcare providers to be registered with the state would not sufficiently interfere with the right to have an abortion, even though it affects access to abortion services to some extent, to warrant a due process inquiry at all. But what kinds of burdens count under the Second Amendment?

We can derive some guidance from Heller on this question, but in the end, it is not very helpful. We know that banning the possession of handguns in one’s home violates the right to keep and bear arms because most people prefer handguns to long guns for home defense purposes and this preference can be rationalized on pragmatic grounds. Accordingly, the difference in cost and utility between handguns and long guns presumably constitutes a sufficient burden on a person’s ability to defend his or her home to warrant constitutional review. It is entirely unclear, however, what doctrinal standard might capture the magnitude of this burden, and thus enable courts to resolve infringement issues in other cases.

Moreover, there is no way to know whether a burden that infringes the right to keep a firearm for self-defense purposes in one’s home would be sufficient to infringe the Second Amendment in some other context. The Heller Court’s emphasis on home self-defense purposes is largely unexplained. True, the home is a personal sanctuary. But for self-defense purposes, it is hardly the only location where a person might need a firearm to protect herself or her family. A family might be attacked while driving in a car, visiting a mall, or picnicking in a local park. Heller does not elaborate on what, exactly, leads the Court to deem the need to possess a firearm in one’s home particularly acute.

Several answers are possible, but each has different implications for Second Amendment doctrine. Individuals are not especially subject to assault in their homes. Indeed, they are more likely to be attacked in other locations. But they may be uniquely vulnerable in their homes, because they are out of the public eye, so that third parties or the police would have less ability to intervene on their behalf. Alternatively, the state may have less of a justification for interfering with the right to have a firearm in one’s home because the discharge of the weapon in that location poses less of a risk of injury to third parties than would, say, a shootout in the mall or on the freeway. One answer goes to the strength of the right; the other, to the strength of the state’s interest in restricting the right. As is true of so many open issues related to the Second Amendment, Heller creates questions but provides no useful answer to them.

In our next installment, Part Two in this series, we will take up the ways in which some recent and important lower court decisions are grappling with all this Second Amendment uncertainty.

Vikram David Amar, a Justia columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.Follow @pro_amar on TwitterAlan Brownstein is a Professor of Law and the Boochever and Bird Endowed Chair for the Study and Teaching of Freedom and Equality at the University of California, Davis, School of

If this "The Obama administration has offered no considered legal defense for the recess appointments. It even appears that it got no opinion from the Office of Legal Counsel in advance of the action—a sure sign the administration understood it was on shaky legal ground." is true, than Obama totally fu$#ed up. See my post from above.

Incidentally, if his credentials didn't indicate this, McConnell is real, real smart and an influetial scholars and jurist.

Where's John Yoo when President Obama needs him? The famous Bush Administration legal official was much maligned for issuing opinions supporting Presidential power, and he surely would have come up with something better than the junk law issued by the Justice Department's Office of Legal Counsel yesterday.

The 23-page memorandum (dated January 6) by Assistant Attorney General Virginia Seitz is meant to justify Mr. Obama's recess appointments last week of Richard Cordray at the Consumer Financial Protection Bureau and three new members of the National Labor Relations Board—even though the Senate was not in recess but was holding pro forma sessions. The House also did not consent to the Senate's adjournment, as required by the Constitution's Article I, section 5, clause 4.

Ms. Seitz concedes that "The question is a novel one, and the substantial arguments on each side create some litigation risk for such appointments," and little wonder. Most of the opinion is an off-point digression on the constitutionality of recess appointments between Senate sessions, which no one disputes. But on that "novel" question, Ms. Seitz's legal reasoning is remarkably weak.

She avers that the pro forma sessions aren't technically sessions. As "a practical matter," she writes, in those sessions the Senate isn't capable of receiving and acting on nominations to the executive branch and therefore cannot exercise its advice and consent duties. Ms. Seitz points in particular to a Senate "standing order"—the rules of order it adopts to govern its procedures—that no business would be transacted during the pro forma sessions. If the Senate itself says it can't conduct business, she says, then the President can conclude it isn't really in session.

The problem is that the Senate does most of its work by unanimous consent—meaning without objection from present Members and without a vote or quorum. Even a single Senator alone on the floor (or "as a practical matter" one from each party) can use this process to modify the standing order in a heartbeat and conduct business.

The Senate did exactly that to pass Mr. Obama's payroll tax holiday in December, changing a standing order by unanimous consent to conduct business during an ostensibly pro forma session. Mr. Obama signed that bill. Either that was a real session and therefore his recess appointments are unconstitutional or the bill was invalidly enacted and therefore unconstitutional. Both can't be true.

The practical effect of Ms. Seitz's legal logic is that the President could make a recess appointment when the Senate adjourns for the day, or for lunch. He could also decide that the Senate isn't functioning to his liking—for instance, by dragging its feet on his nominations—and recess appoint nominees even when the Senate is conducting other business.

Last week, White House spokesman Jay Carney claimed Mr. Obama relied on the advice of White House counsel and didn't mention that the Office of Legal Counsel had been consulted beforehand. Now we know why: The Administration's position is a made-to-order legal invention.

Moving from the hypocrisy of Gov. Perry on states rights over to the top of the constitutional law profession: Prof. Lawrence Tribe of Harvard Law School on the constitutionality (and unconstitutionality) of recess appointments - depending on who makes them. (?)

Games and Gimmicks in the SenateBy LAURENCE H. TRIBE Published: January 5, 2012ON Wednesday President Obama, using his power to make recess appointments, named Richard Cordray as the first director of the Consumer Financial Protection Bureau. A few hours later, he used the same power to appoint three new members to the National Labor Relations Board, acting to overcome unprecedented Senate encroachment on his duty to appoint executive officials. The president’s right to do so is clearly stated in the Constitution: the recess appointments clause empowers him to “fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” http://www.nytimes.com/2012/01/06/opinion/games-and-gimmicks-in-the-senate.html?_r=1

In support of Obama, Tribe asserts that the president's power to deem the Senate to be "in recess" and then make recess appointments "is clearly stated in the Constitution" and is further supported by "past practice." But against Bush, Tribe argued that "[t]he text, structure, purpose, function, and pre-1921 history of the Recess Appointments Clause all confirm . . . that the President may not make recess appointments during intra-session Senate breaks."

In support of Obama, Tribe argues that intra-session recess appointments are especially justified when the Senate is deliberately "frustrat[ing] presidential appointments." But against Bush, he argued the opposite: recess appointments are all the more illegitimate when the nominee in question already had been the subject of Senate debate yet "failed to obtain enough votes to go forward under Senate rules."

In support of Obama, Tribe argues that the Senate made itself "unavailable" by largely leaving Washington. But against Bush, he scoffed at the notion that the Senate was ever truly unavailable, thanks to modern technology: even during "holiday breaks that typically last one or two weeks," Senate business "can easily resume, if necessary, owing to modern communications and transportation."

In support of Obama, Tribe invokes Alexander Hamilton's Federalist 67 for the proposition that recess appointments, even intra-session appointments such as Cordray's, are justified when "necessary for the public service to fill without delay." Against Bush, by contrast, he invoked Federalist 67 for the proposition that "recess appointments would be 'necessary,' and thus permissible, only outside the 'session of the Senate"—i.e., never during type of intra-session break that President Obama exploited last week.

In defense of Obama's recess appointments, Tribe said that the president was setting a precedent that would apply "only in instances of transparent and intolerable burdens on his authority." But when Bush made recess appointments, Tribe warned of a slippery slope toward tyranny: We cannot "take comfort in the hope that no President is likely to abuse the recess appointment power" whenever the Senate opposes a nomination, because of the "hydraulic pressure inherent within" the presidency and other branches of government "to exceed the outer limits of its power."

The legal case in favor of President Obama "ought to be a slam dunk"; the same case, in favor of President Bush, was "novel" and "ominous." And so on. (http://www.weeklystandard.com)

Woof, If our government can force a gun store to report to them, the name and address of someone who has gone through the background check, and legally purchase a weapon, when they buy more than one gun at a time, doesn't that set the prescient that anytime we exercise any of our rights that the government could force us to report that activity to them? If you say more than one prayer a day? Go to church more than once a week? Say something negative about the government more than twice a day? Just trying to figure out the ramifications of a Federal Judge saying the government can do exactly that, because if it applies to the Second Amendment it applies to all. P.C.

Woof, If our government can force a gun store to report to them, the name and address of someone who has gone through the background check, and legally purchase a weapon, when they buy more than one gun at a time, doesn't that set the prescient that anytime we exercise any of our rights that the government could force us to report that activity to them? If you say more than one prayer a day? Go to church more than once a week? Say something negative about the government more than twice a day? Just trying to figure out the ramifications of a Federal Judge saying the government can do exactly that, because if it applies to the Second Amendment it applies to all. P.C.

No inside scoop but I had a brief conversation this morning with one of the judges who heard the first amendment, funeral protest case this past week. Sounded like it is a little unusual for them to have all 11 judges hear a case and unusual for them to have to go through a protest to get to their courthouse.

The First Amendment and street protests both were on the docket of the Federal Appeals Court in St. Louis. The case involves the controversial Westboro Baptist Church and laws preventing its members from protesting at military funerals.

Street theatre and the First Amendment were the topics Monday afternoon as the court considered whether cities can outlaw protests at service member's funerals.

On one side, there is the Westboro Baptist Church of Wichita, Kansas and on the other, the St. Louis County suburb of Manchester.

Manchester outlawed protests at funerals in 2007. The ordinance was aimed at Westboro Baptist, which travels the country protesting at military funerals. Westboro members believe military deaths are god's punishment for the US tolerating homosexuals. The Manchester ordinance outlaws such protests within 300 feet of any funeral home the day of a funeral.

The ACLU sued Manchester and seven other Missouri cities with similar ordinances, arguing that the protests are political speech and are therefore totally protected by the First Amendment. A lower federal court agreed.

But now the case is before the Federal Appeals Court. And in a demonstration of just how important this First Amendment case is, all 11 appeals court judges heard the case inside the Eagleton Courthouse while protestors marched outside.

Justice Thomas's opinion in Heller. It is quite long and I am only halfway through it, but I am finding a superb piece of work. The analysis of the 14th regarding the issue of incorporation of the Bill of Rights may well be the best I have ever read.

Scott J. Ferrell/CQ Roll Call File PhotoConservatives have called for Supreme Court Justice Elena Kagan to recuse herself from the case considering the constitutionality of the health care reform law.

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The Supreme Court might have blocked a conservative activist from participating in oral arguments against the health care law, but stakeholders maintain it's not a setback in their larger push for Justice Elena Kagan to recuse herself during deliberations this spring.

The high court rejected Freedom Watch founder Larry Klayman's request to participate in oral arguments, although his amicus brief maintaining that Kagan should not participate in the case still stands.

Klayman, a conservative dynamo who also founded Judicial Watch, said Monday's decision "is not a setback." Ed Whelan, another conservative legal scholar, called the announcement "insignificant" to the broader dispute over whether Kagan should recuse herself.

Conservatives have pushed for Kagan to step aside when the Supreme Court considers the constitutionality of the health care reform law this spring. The newest justice on the court served as President Barack Obama's solicitor general while the law was being crafted in Congress in 2009 and 2010, and conservative legal observers maintain Kagan's role in the executive branch during that time prevents her from considering the law fairly in court.

Supreme Court justices decide on their own whether to recuse themselves in cases when their impartiality might be in question, and advocates of all political stripes gripe that the lack of protocol in deciding when to step back is a problem. Scrutiny over the issue has only grown in the months since it was announced the Supreme Court would take up the health care law, a highly political issue that will come before the court just as the 2012 campaign season is in full swing.

Klayman said Monday's decision suggests the high court is avoiding the thorny issue of conflicts of interest and whether justices should step aside in pending cases in which they might have a vested interest.

"Apparently, the Supreme Court thinks it will be embarrassed if it, in effect, allows the American people to speak and wants to quietly sweep the issue of its own ethics and respect for the law under the table," Klayman said in a release.

But Klayman vowed to press on, noting in an interview that he spoke with House Judiciary Committee staff about holding a hearing on the matter and calling for Chief Justice John Roberts and Kagan to testify. Roberts has maintained that justices should not recuse themselves from hearing cases unless absolutely necessary, and in a year-end report in December, he said, "I have complete confidence in the capability of my colleagues to determine when recusal is warranted."

The conservative Klayman is not the only one who has taken issue with that stance. Congressional Democrats have maintained for months that Justice Clarence Thomas should step aside from participating in deliberations of the health care reform law because of his wife's tenure at the Heritage Foundation.

The conservative organization was an ardent opponent of the measure while it was working its way through Congress, and Democrats say Thomas will therefore not be an impartial arbiter of the case when the law's constitutionality is considered.

A group of 20 House Democrats led by Rep. Louise Slaughter (N.Y.) called on the Judicial Conference of the United States, the governing body for federal courts, to look into what they said were Thomas' ethical violations last year. The lawmakers charged that Thomas did not report his wife's income from the Heritage Foundation. The Judicial Conference has not responded.

A spokeswoman for House Judiciary Chairman Lamar Smith (R-Texas) said, "We have been very active with trying to get information from DOJ regarding what role Justice Kagan may have played in discussions regarding Obamacare while she was solicitor general."

Smith's Senate counterpart, Judiciary Chairman Patrick Leahy (D-Vt.), has also looked into the matter and held a high-profile hearing last year on the issue of recusal featuring Justices Stephen Breyer and Antonin Scalia.

Despite the efforts from legal observers and Members, the Supreme Court is not expected to bow to the political pressure. While Kagan abstained from Monday's decision on Freedom Watch's request, it's not considered to be a hint that she will likewise sit back when the health care law comes before the court.

"Whether it's the Congress or the courts of the executive branch, the American people don't feel like they have a voice," Klayman complained.

This morning, at the National Prayer Breakfast, Barack Obama cited Scripture as justification for his policy agenda — from reforming health care to ensuring that financial institutions play by fair rules to taxing the rich. BuzzFeed’s Zeke Miller reports:

The president said he often falls to his knees in prayer, and emphasized the role of his religious values in determining where to lead the country.

“I’d be remiss if I stopped there; if my values were limited to personal moments of prayer or private conversations with pastors or friends. So instead, I must try — imperfectly, but I must try — to make sure those values motivate me as one leader of this great nation.”

Obama maintained that his call for the wealthiest to give up their tax breaks, he’s doing so out of economic necessity, but also in line with biblical teachings.

“And I think to myself, if I’m willing to give something up as somebody who’s been extraordinarily blessed, and give up some of the tax breaks that I enjoy, I actually think that’s going to make economic sense. But for me as a Christian, it also coincides with Jesus’s teaching that ‘for unto whom much is given, much shall be required,’” Obama said, noting Jewish and Islamic teachings say much the same thing.

It surprises me to encounter the president using this tactic. In the first place, the specific example he cites above is misapplied. When the president establishes a policy direction — and Congress follows it — his decisions don’t just affect him. When he promotes increased taxation of “the rich,” he’s not merely giving up his own tax breaks as he implies — he’s also suggesting the government should be able to force others to pay more in taxes, as well. That’s just obvious — and to say otherwise actually makes the president look more confused than anything. Here, we seem to have an out-of-water Obama who wants very desperately to pander but doesn’t quite know how.

It’s always a bit tricky to apply Scripture to political problems. After all, Jesus made it very clear to his apostles, who expected the Messiah to win a worldly victory against their oppressors, that His kingdom is not of this world. When he directly addresses the issue of taxation, He says simply to give to Caesar what is Caesar’s and to give to God what is God’s. Yes, Jesus is acutely concerned with issues of authority and also with issues of wealth and poverty — but it all proceeds from the basic assumptions that authority comes from His Father and that the spiritual, in general, has primacy over the material. That is, Jesus’ injunctions to His followers to give everything they have to the poor proceed from the idea that whatever stands in the way of loving Him has got to go. It’s about His glory, not about the creation of some utopian society. Those who make Jesus’ teachings about the latter and not the former miss the major point His life, death and resurrection make.

Sure, it is the nation’s founding document and sacred text. And it is the oldest written national constitution still in force anywhere in the world. But its influence is waning.

In 1987, on the Constitution’s bicentennial, Time magazine calculated that “of the 170 countries that exist today, more than 160 have written charters modeled directly or indirectly on the U.S. version.”

A quarter-century later, the picture looks very different. “The U.S. Constitution appears to be losing its appeal as a model for constitutional drafters elsewhere,” according to a new study by David S. Law of Washington University in St. Louis and Mila Versteeg of the University of Virginia.

The study, to be published in June in The New York University Law Review, bristles with data. Its authors coded and analyzed the provisions of 729 constitutions adopted by 188 countries from 1946 to 2006, and they considered 237 variables regarding various rights and ways to enforce them.

“Among the world’s democracies,” Professors Law and Versteeg concluded, “constitutional similarity to the United States has clearly gone into free fall. Over the 1960s and 1970s, democratic constitutions as a whole became more similar to the U.S. Constitution, only to reverse course in the 1980s and 1990s.”

“The turn of the twenty-first century, however, saw the beginning of a steep plunge that continues through the most recent years for which we have data, to the point that the constitutions of the world’s democracies are, on average, less similar to the U.S. Constitution now than they were at the end of World War II.”

There are lots of possible reasons. The United States Constitution is terse and old, and it guarantees relatively few rights. The commitment of some members of the Supreme Court to interpreting the Constitution according to its original meaning in the 18th century may send the signal that it is of little current use to, say, a new African nation. And the Constitution’s waning influence may be part of a general decline in American power and prestige.

In an interview, Professor Law identified a central reason for the trend: the availability of newer, sexier and more powerful operating systems in the constitutional marketplace. “Nobody wants to copy Windows 3.1,” he said.

In a television interview during a visit to Egypt last week, Justice Ruth Bader Ginsburg of the Supreme Court seemed to agree. “I would not look to the United States Constitution if I were drafting a constitution in the year 2012,” she said. She recommended, instead, the South African Constitution, the Canadian Charter of Rights and Freedoms or the European Convention on Human Rights.

The rights guaranteed by the American Constitution are parsimonious by international standards, and they are frozen in amber. As Sanford Levinson wrote in 2006 in “Our Undemocratic Constitution,” “the U.S. Constitution is the most difficult to amend of any constitution currently existing in the world today.” (Yugoslavia used to hold that title, but Yugoslavia did not work out.)

Other nations routinely trade in their constitutions wholesale, replacing them on average every 19 years. By odd coincidence, Thomas Jefferson, in a 1789 letter to James Madison, once said that every constitution “naturally expires at the end of 19 years” because “the earth belongs always to the living generation.” These days, the overlap between the rights guaranteed by the Constitution and those most popular around the world is spotty.

Americans recognize rights not widely protected, including ones to a speedy and public trial, and are outliers in prohibiting government establishment of religion. But the Constitution is out of step with the rest of the world in failing to protect, at least in so many words, a right to travel, the presumption of innocence and entitlement to food, education and health care.

It has its idiosyncrasies. Only 2 percent of the world’s constitutions protect, as the Second Amendment does, a right to bear arms. (Its brothers in arms are Guatemala and Mexico.)

The Constitution’s waning global stature is consistent with the diminished influence of the Supreme Court, which “is losing the central role it once had among courts in modern democracies,” Aharon Barak, then the president of the Supreme Court of Israel, wrote in The Harvard Law Review in 2002.

Many foreign judges say they have become less likely to cite decisions of the United States Supreme Court, in part because of what they consider its parochialism.

“America is in danger, I think, of becoming something of a legal backwater,” Justice Michael Kirby of the High Court of Australia said in a 2001 interview. He said that he looked instead to India, South Africa and New Zealand.

Mr. Barak, for his part, identified a new constitutional superpower: “Canadian law,” he wrote, “serves as a source of inspiration for many countries around the world.” The new study also suggests that the Canadian Charter of Rights and Freedoms, adopted in 1982, may now be more influential than its American counterpart.

The Canadian Charter is both more expansive and less absolute. It guarantees equal rights for women and disabled people, allows affirmative action and requires that those arrested be informed of their rights. On the other hand, it balances those rights against “such reasonable limits” as “can be demonstrably justified in a free and democratic society.”

There are, of course, limits to empirical research based on coding and counting, and there is more to a constitution than its words, as Justice Antonin Scalia told the Senate Judiciary Committee in October. “Every banana republic in the world has a bill of rights,” he said.

“The bill of rights of the former evil empire, the Union of Soviet Socialist Republics, was much better than ours,” he said, adding: “We guarantee freedom of speech and of the press. Big deal. They guaranteed freedom of speech, of the press, of street demonstrations and protests, and anyone who is caught trying to suppress criticism of the government will be called to account. Whoa, that is wonderful stuff!”

“Of course,” Justice Scalia continued, “it’s just words on paper, what our framers would have called a ‘parchment guarantee.’ ”

I didn't like Ruth Bader Ginsburg when she was my Constitutional Law Prof at Columbia. I suspect my doggy nose was smelling the lack of respect she has for our Constitution. Now I know just how right my instincts were.

Hey, it's never too early for a wise latina to push leftist legal memes on the kiddies. Hey, these bears have food and property, Goldilocks was just OWS'ing their 1% house. It's like free speech or something....

And here I was thinking that the USSC wouldn't have original jurisdiction over the case, so the fact that she was ruling on the facts was teaching kids poorly about the cases the Court hears. But then, I am a dork.

And here I was thinking that the USSC wouldn't have original jurisdiction over the case, so the fact that she was ruling on the facts was teaching kids poorly about the cases the Court hears. But then, I am a dork.

That was before Obama's fundamental transformation of America. Get with the times. Ethnicity trumps both ability and the rule of law now.

This November’s election isn’t about the direction of our country over the next four years – it’s about the very survival of our Constitution, our values, and our freedoms as we know them. If freedom-loving Americans needed any more evidence for this, U.S. Supreme Court Associate Justice Ruth Bader Ginsburg recently provided it.

In a visit to Cairo, Egypt, Justice Ginsburg told Al Hayat television, “I would not look to the U.S. Constitution, if I were drafting a constitution in the year 2012.”

Instead, she urged Egyptians to look elsewhere to more modern constitutions in South Africa, Canada, and even the European Convention on Human Rights.

Of course, not one of these governing documents comes close to adequately guaranteeing the fundamental human rights and liberties enshrined in our U.S. Constitution. It’s also worth pointing out that Ginsburg’s eagerness to diminish the sanctity of America’s supreme law is hardly shocking, as this isn’t the first time she’s gone out of her way to disparage the document she swore an oath to uphold.

But her comments should serve as a chilling reminder of everything that is at stake in this year’s presidential election.

If President Barack Obama wins reelection, he could have the opportunity to fill up to three vacancies on the Supreme Court. And as we’ve seen in his first term, Obama is not interested in appointing sound, originalist nominees to the high court.

Rather, the President is committed to stacking the court with anti-Second Amendment, anti-freedom justices who are motivated to make rulings that dismantle the fundamental freedoms guaranteed in our Bill of Rights. In essence, Obama wants judges in the Ruth Bader Ginsburg mold, who are brazen enough to undermine the very laws and individual human rights they swear to defend.

For example, in the Supreme Court’s landmark Heller decision that narrowly struck down Washington, D.C.’s unconstitutional gun ban by a 5-4 vote, Ginsburg and three of her colleagues concluded that the Second Amendment does not guarantee an individual right to own a firearm, nor does it protect our right to defend ourselves, our property, or our loved ones.

Ginsburg may have lost that round, but assuredly, she knows how close the anti- freedom wing of the court is to erasing our Second Amendment freedom out of existence. As Ginsburg told a Harvard Club audience in 2009, she looks forward to the day when a “future, wiser court” overturns 5-4 decisions like Heller.

Nearly three years into President Obama’s first term in office, Michelle Obama finally said something with which I can agree.

At a recent fundraiser for President Obama’s re-election campaign in Providence, Rhode Island, the first lady told her audience:

“We stand at a fundamental crossroads for our country. You’re here because you know that in just 13 months, we’re going to make a choice that will impact our lives for decades to come … let’s not forget what it meant when my husband appointed those two brilliant Supreme Court justices … let’s not forget the impact that their decisions will have on our lives for decades to come.”

This was music to the ears of the small, affluent crowd of admirers who cheered and applauded. But to gun owners, Michelle Obama’s remarks should sound like a warning bell, alerting us to the danger ahead should Barack Obama win re-election and get the opportunity to alter the current make-up of the Supreme Court.

When Americans flock to the polls in 13 months, we will not simply decide which direction our country should take over the next four years. Rather, we will decide whether or not our fundamental, individual right to keep and bear arms will survive over the next several decades.

Currently, the Second Amendment clings to a 5-4 pro-freedom majority on the Supreme Court. Just one vote is all that stands between the America our Founding Fathers established and a radically different America that Barack Obama and his supporters envision.

If you want to read something scary, take another look at the minority opinions in the Supreme Court’s landmark Heller and McDonald decisions that struck down Washington, D.C.’s and Chicago’s unconstitutional gun bans. In the Heller dissent, four justices concluded that the Second Amendment does not guarantee an individual right to own a firearm, nor does it protect our right to defend ourselves, our families, or our property. In McDonald, the same four justices argued that the 5-4 Heller decision should be reversed.

If these four justices had just one more vote on their side, their opinion — that the Second Amendment should not exist in today’s modern society — would be the law of the land today. And assuredly, the anti-gun activist wing of the court knows how close they are to gaining the upper hand. As Justice Ruth Bader Ginsburg told a Harvard Club audience in 2009, she looks forward to the day when a “future, wiser court” overturns 5-4 decisions like Heller.

Praying for the health of five justices is not a sound legal strategy for ensuring that our Second Amendment freedoms survive the relentless legal assault that gun-ban groups are waging in courtrooms across America. We need a president who will nominate sound, originalist nominees to the high court — nominees who will preserve the freedoms our Founding Fathers enshrined in our Constitution.

If President Obama gets the opportunity to tilt the balance of the Supreme Court in his favor, we’re unlikely to see another pro-gun victory at the Court in our lifetime. Even worse, the 5-4 majorities in Heller and McDonald will be in serious jeopardy of being reversed, effectively eliminating the Second Amendment. NRA members, gun owners and all freedom-loving Americans should heed Michelle Obama’s warning. We must spend the next 13 months working to make sure her husband doesn’t get four more years to destroy American freedom for generations to come.

Chris W. Cox is the Executive Director of the National Rifle Association Institute for Legislative Action (NRA-ILA (http://www.nraila.org/)) and serves as the organization’s chief lobbyist. Article printed from The Daily Caller: *http://dailycaller.com* URL to article: *http://dailycaller.com/2011/10/11/michelle-obamas-warning-to-gun-owners/*

County lands in feud with Forest Service Some see the road closures in southwest Colorado as federal encroachment. Posted: 03/27/2011 01:00:00 AM MDT By Nancy Lofholm The Denver Post denverpost.com

CORTEZ — Montezuma County Sheriff Dennis Spruell is waiting for his conscience to tell him: Should he start handing out tickets this week to U.S. Forest Service agents who are closing backcountry roads? Should he cut locks on gates that shut off access to public lands?

The fact that a county sheriff is considering such actions against the federal government is a good indication that more than a run-of-the-mill dustup over road and trail closures on public lands is erupting in the far southwest corner of the state.

Spruell and others are upset about road closures in the San Juan National Forest. But their ire over not being able to use certain trails is overshadowed by a broader issue. They cite various interpretations of the Constitution to argue that the federal government shouldn't have jurisdiction over forest lands in the first place and that the Forest Service is not a legitimate agency.

"When I ran for office the No. 1 question I was asked was 'what are you going to do about the encroachment of the federal government?' The people here have just had enough. They are really tired of the federal government telling them what to do," said Spruell, who sits in his office beneath a sign reading, "People Protected by Pit Bull Spruell." The sign was given to him by members of the conservative 9-12 Patriots group.

In recent weeks, protesters have marched on the local Forest Service and BLM office located between Cortez and Dolores, calling Forest Service officials "government pukes." Armed detractors of the federal agencies have set up a large display of signs near the office denouncing forest regulations and drawing attention with a stuffed, rifle-toting bear dangling from a rope. More than 170 residents last week jammed into a talk by two Utahns who claim in three self-published books that the federal government has far exceeded its original mission spelled out in the Constitution.

The idea that federal land should be turned over to the states or the counties has gained traction with everyone from businessmen who have little direct stake in the issue to the three dozen or so folks who spend four hours every other Saturday sitting through a Constitution class led by Minuteman Mike Gaddy. Gaddy has a theory that the Forest Service or BLM might be restricting access to lands because the federal government has promised mineral rights to the Chinese in lieu of paying off the U.S. debt owed to that nation.

The outcry and resulting conspiracy theories is the result of three plans put forward by the Forest Service to implement travel management plans on three sections of the forest as required by a 2005 federal mandate. The intersection of those plans are what Steve Beverlin, Dolores Public Lands Office manager, calls "a perfect storm" for controversy. Beverlin knows. He was just transferred from his job late last week amid of all the controversy.

He explained that at the same time workers began closing and reclaiming roads on two of the areas, a plan was publicized that called for the closure of 155 miles of an estimated 700 miles of unauthorized motorized routes in the Boggy Glade area near Dolores.

Boggy Glade is a popular high-country area where the elderly, the disabled and hunters have long used the trails that now branch out across the map of the area like a bad case of varicose veins. Many of those slated for closure were made by ATVs veering off established trails. Some were created for logging or mining decades ago and never closed until now.

Many of those protesting the closures cite an 1866 law they refer to as RS 2477, which they argue gives local governments authority over roadways. The law was designed to promote settlement of the west by granting rights of way to people who wanted to build roads across public lands. It was repealed in 1976, but already-established rights of way were allowed to continue.

The term RS 2477 is commonly bandied about here in coffee shops and government offices. There are many differing ideas about exactly what it means, but the bottom line is that its adherents think the law can be used to take some roads and trails from federal jurisdiction and put them in the hands of counties.

"The misinformation about this is just daunting," said Veronica "Ronni" Egan, national director of the Great Old Broads for Wilderness and a resident of nearby Mancos. Her organization is going to begin running full-page ads in local papers soon to try to dispel some of what they believe is wrong information about what's happening in their forest.

Doug Maxwell doesn't want to hear any of that.

"The Forest Service has no right to enforce any laws. They can't enforce laws unless they are deputized by the county sheriff," said Maxwell, a retiree who has been sitting down the road from the public lands office outside Dolores since mid-January with anti-Forest Service signs like, "Road Closures = a Step Toward Tyranny."

Jerry Martin, sheriff of Dolores County for 21 years, said he fears that all this rhetoric coupled with rampant rumors could lead to something as horrific as the incident in 1998 when three angry anti-government misfits shot their way through the Four Corners, killing one deputy, wounding three others and leading 500 officers on a massive, extended manhunt.

"We've had heated problems over grazing in the past and disputes over logging. But I've never seen anything of this magnitude," Martin said.

Spruell has been criticized by some residents as contributing to the unrest by aligning himself with the anti-federal-government crowd and by making threats to arrest or ticket Forest Service workers.

The sheriff said he is simply following his conscience. He said that will help him decide what to do when he encounters workers closing roads he doesn't think should be closed or reclaiming roads by first ripping them up with heavy machinery. He has already told his deputies not to cite citizens who are violating federal regulations he doesn't believe are legitimate, such as camping too far off the road in a restricted area.

"I'm not a radical," he said. "But when I see something I think is wrong, it's my responsibility to do something."

More than a year after taking office, Montezuma County Sheriff Dennis Spruell is sticking to his guns by vowing to keep a close watch not only on crime, but also on the possible overreach of other government agencies.

Instead of state and federal agencies and local law enforcement having an adversarial relationship, they should work together, Spruell said.

“I still get tears in my eyes when I say the Pledge of Allegiance,” he said. “When our forefathers wrote the Constitution, they warned us of the encroachment of the federal government. If somebody doesn’t stand up and say ‘hey wait a minute, this is not correct,’ then it won’t be long before we’re a socialist country.”

Spruell reaffirmed this philosophy by attending The Constitutional Sheriffs and Peace Officers Association’s first conference last month in Las Vegas, Nev. The convention was aimed at teaching local law enforcers about their constitutional responsibilities.

“People think we’re trying to overthrow the government, and that’s not the case at all,” he said. “We work very closely with the other agencies, and we just want to be educated in our authority as sheriff and what our duty to the Constitution is.”

Spruell made national headlines for taking a stance against the federal public lands agencies attempting to close forest roads on public land in Montezuma County.

“What struck me is that all across the country the issues that sheriffs have with some of the federal agencies are common,” he said. “It’s not just here in Montezuma County.”

Spruell said his goal going into office was to bring the U.S. Forest Service to the table with the county government.

“It wasn’t to control the forest service,” he said. “My goal was to get them to come to the table. And since then, I am very happy to say they are now coming to the table and they are talking to us.”

Some rallied behind Spruell on the road-closure issue, while others saw his viewpoints as radical.

The latest dispute involved the closure of a U.S. Forest Service road to the privately owned Red Arrow Mine northwest of Mancos, preventing the owner from accessing the property.

Recently appointed District Ranger Derek Padilla said the closure of the road to the Red Arrow Mine was only during the winter to prevent the public from getting stuck or causing maintenance issues.

The local public lands office has a long backlog of issues and only one person to work through them, Padilla said. Additionally, some issues may have slipped through the cracks during the recent change in administration.

A lot of banter over one's profession over on Political Economics, the least of our spending problems come from paying real people to do real work that really is the function of that level of government like local police and fire. Still it begs the constitutional question, under what authority is nationalizing the hiring police and teachers derived? Or the potential bailouts of the states and localities who commit to compensation and retirement packages they cannot afford?

Examples:

"President Barack Obama said Monday that he would like to extend the school year and raise teacher pay to help improve the U.S. education system." WSJ 9/27/2010